In a 5-4 decision today (PDF) authored by Justice Kennedy, the Supreme Court has held that a Louisiana statute authorizing the death penalty for those who rape children is unconstitutional if the defendant's acts were not intended to cause death. In so doing, the Court determined that there was "a national consensus against capital punishment for the crime of child rape," and that expanding the death penalty to such crimes would be cruel and unusual.
The case answers a question left unanswered by the Court's 1977 decision in Coker v. Georgia, which had held that imposing the death penalty for the rape of an adult would be grossly disproportionate and excessive punishment, and was therefore forbidden by the Eighth Amendment as cruel and unusual, and constitutes a further limitation on the applicability of the death penalty -- decisions within the past few years have held that the execution of juveniles and mentally retarded persons also violated the Eighth Amendment because of the offender's diminished personal responsibility for the crime.
This time, it's about the crime itself. Patrick Kennedy was convicted of raping of his eight-year-old stepdaughter. Louisiana was one of six states where the death penalty could be sought for the crime -- for any anal, vaginal, or oral intercourse with a child under the age of 13 -- and that's what the jury determined for his punishment. Justice Kennedy noted that this was a close call:
It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim’s fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker, which posited that, for the victim of rape, "life may not be nearly so happy as it was" but it is not beyond repair. 433 U. S., at 598. Rape has a permanent psychological, emotional, and sometimes physical impact on the child. See C. Bagley & K. King, Child Sexual Abuse: The Search for Healing 2–24, 111–112 (1990); Finkelhor & Browne, Assessing the Long-Term Impact of Child Sexual Abuse: A Review and Conceptualization in Handbook on Sexual Abuse of Children 55–60 (L. Walker ed. 1988). We cannot dismiss the years of long anguish that must be endured by the victim of child rape.
It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish "be exercised within the limits of civilized standards." Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.
Moreover, the Court was sensitive to what death penalty proceedings ask of the rape victim:
It is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator. Capital cases require a long-term commitment by those who testify for the prosecution, especially when guilt and sentencing determinations are in multiple proceedings. In cases like this the key testimony is not just from the family but from the victim herself. During formative years of her adolescence, made all the more daunting for having to come to terms with the brutality of her experience, L. H. was required to discuss the case at length with law enforcement personnel. In a public trial she was required to recount once more all the details of the crime to a jury as the State pursued the death of her stepfather.... And in the end the State made L. H. a central figure in its decision to seek the death penalty, telling the jury in closing statements: "[L. H.] is asking you, asking you to set up a time and place when he dies." Tr. 121 (Aug. 26, 2003). Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system; and this is but a subset of fundamental difficulties capital punishment can cause in the administration and enforcement of laws proscribing child rape.
The nature of the victim, the Court argues, also makes convictions less reliable than we'd like before imposing death:
There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a "special risk of wrongful execution" in some child rape cases. This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment. Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. [Citing multiple studies.] Similar criticisms pertain to other cases involving child witnesses; but child rape cases present heightened concerns because the central narrative and account of the crime often comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed.
Moreover, and this is a bit gruesome (the "rational rapist"?) but perhaps true:
[B]y in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes.
To be clear, today's opinion is limited to child rape statutes: "We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken."
Justice Alito authored the dissent on behalf of -- you guessed it -- himself, Justices Scalia, Thomas and the Chief Justice. He argued that because of the Coker decision, states have been reluctant to pass statutes authorizing the death penalty for child rape, such that you can't really tell what the societal consensus is. Moreover:
With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?
... Indeed, I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists -- predators who seek out and inflict serious physical and emotional injury on defenseless young children -- are the epitome of moral depravity.
The dissent argues against any considerations of the statute's impact on rape victims:
These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is "cruel and unusual" punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should -- and presumably do -- take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case.
And in the end, it becomes an argument about which side really understands the harm that rape does to child victims, and as someone who remembers well his feminist readings about how world-destroying rape can be for its victimes, I'm not entirely unsympathetic when Justice Alito writes:
The Court takes pains to limit its holding to "crimes against individual persons" and to exclude "offenses against the State," a category that the Court stretches—without explanation—to include "drug kingpin activity." But the Court makes no effort to explain why the harm caused by such crimes is necessarily greater than the harm caused by the rape of young children. This is puzzling in light of the Court’s acknowledgment that "[r]ape has a permanent psychological, emotional, and sometimes physical impact on the child." As the Court aptly recognizes, "[w]e cannot dismiss the years of long anguish that must be endured by the victim of child rape."
The rape of any victim inflicts great injury, and "[s]ome victims are so grievously injured physically or psychologically that life is beyond repair." [] "The immaturity and vulnerability of a child, both physically and psychologically, adds a devastating dimension to rape that is not present when an adult is raped." [Citing studies.] Long-term studies show that sexual abuse is "grossly intrusive in the lives of children and is harmful to their normal psychological, emotional and sexual development in ways which no just or humane society can tolerate." It has been estimated that as many as 40% of 7- to 13- year-old sexual assault victims are considered "seriously disturbed." Psychological problems include sudden school failure, unprovoked crying, dissociation, depression, insomnia, sleep disturbances, nightmares, feelings of guilt and inferiority, and self-destructive behavior, including an increased incidence of suicide.
The deep problems that afflict child-rape victims often become society’s problems as well. Commentators have noted correlations between childhood sexual abuse and later problems such as substance abuse, dangerous sexual behaviors or dysfunction, inability to relate to others on an interpersonal level, and psychiatric illness. Victims of child rape are nearly 5 times more likely than nonvictims to be arrested for sex crimes and nearly 30 times more likely to be arrested for prostitution. The harm that is caused to the victims and to society at large by the worst child rapists is grave. It is the judgment of the Louisiana lawmakers and those in an increasing number of other States that these harms justify the death penalty. The Court provides no cogent explanation why this legislative judgment should be overridden. Conclusory references to "decency," "moderation," "restraint," "full progress," and "moral judgment" are not enough.
I do not support the death penalty, though I recognize that there's only one current Justice (Stevens) who even wishes that it were unconstitutional. So while I find myself more sympathetic than I expected to be to the dissenters here -- largely along the feminist lines of acknowleding how horrific rape is -- ultimately, anything that results in fewer executions is something I will applaud. Your mileage may vary.
